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Tuesday, 18 June 2013

My letter to the General Medical Council over its guidance to doctors on conscientious objection to abortion

When two Glasgow midwives won the right to opt out of
supervising abortions last April I suggested
that the General Medical Council (GMC) needed to revise its professional guidance
on the matter which now seemed to be at odds with the law.

At the time Niall Dickson (pictured), the GMC's chief
executive, actually told
the Guardian that the GMC would need to consider the implications of the
judges' decision on its guidance. He is quoted as saying:

‘We will study the outcome of this ruling, which has just
come out, to see if there are any implications for our guidance. We already
have clear guidance which says that doctors should be open with employers and
colleagues so they can practise in accordance with their beliefs without
compromising patient care.’

As I have heard nothing further from the GMC about the
matter, and almost two months have passed, I have today written to Mr Dickson to ask what is happening. My letter
is below:

Dear Mr Dickson,

I’m writing to enquire whether the General Medical Council
intends to revise its guidance on ‘Personal Beliefs and Medical Practice’ in the
light of the recent Glasgow appeal court ruling on participation in abortion
and, if so, what the timescales for the revision are.

You will be aware that two Roman Catholic midwives won a
landmark legal battle in April to avoid taking any part in abortion procedures.

Mary Doogan, 58, and Concepta Wood, 52, had lost a previous
case against NHS Greater Glasgow and Clyde (GGC) when the court ruled that
their human rights had not been violated as they were not directly involved in
terminations.

However appeal judges ruled their right to conscientious
objection means they can refuse to delegate, supervise or support staff
involved in abortions.

The judgment is significant and has relevance also to
doctors (full judgement here).

As you will know the Abortion Act 1967 gives healthcare
professionals the right to conscientiously object to ‘participate’ in abortion
but the scope of the word ‘participate’ has been the matter of some legal
dispute.

But Lady Dorrian, who heard the recent challenge with Lord
Mackay of Drumadoon and Lord McEwan, said: ‘In our view the right of
conscientious objection extends not only to the actual medical or surgical
termination but to the whole process of treatment given for
that purpose.’

She said the conscientious objection in the legislation is
given ‘not because the acts in question were previously, or may have been,
illegal’ but ‘because it is recognised that the process of abortion is felt by
many people to be morally repugnant’.

She added: ‘It is in keeping with the reason for the
exemption that the wide interpretation which we favour should be given to it.
It is consistent with the reasoning which allowed such an objection in the
first place that it should extend to any involvement in the process of
treatment, the object of which is to terminate a pregnancy.’

In the earlier judgement Lady Smith had said that since
the midwives were not covered by the conscience clause as ‘they (were) not
being asked to play any direct role in bringing about terminations of
pregnancy’.

But this has now been overturned.

The GMC
guidance, which interestingly came into force earlier in the very week of the
judgement, is at odds with this ruling. It currently reads:

‘In England, Wales and Scotland the right to refuse
to participate in terminations of pregnancy (other than where the
termination is necessary to save the life of, or prevent grave injury to,
the pregnant woman), is protected by law under section 4(1) of the
Act. This right is limited to refusal to participate in
the procedure(s) itself and not to pre- or post-treatment care,
advice or management, see the Janaway case: Janaway v Salford Area Health
Authority [1989] 1AC 537′

In para 33 of the Judgment the
court makes clear that professional guidelines can be legally wrong and cannot
overrule statute, it says:

‘Great respect should be given to the advice provided
hitherto by the professional bodies, but prior practice does not necessarily
dictate interpretation. Moreover, when the subject of the advice concerns a
matter of law, there is always the possibility that the advice from the professional
body is incorrect’.

Because this Judgment is from a Scottish Court (and Scotland
is a different jurisdiction to England and Wales) it is not strictly binding on
an English Court. However it will nonetheless have significant persuasive force
in England.

The Abortion Act 1967 applies in England, Wales and Scotland
(but not in Northern Ireland) and when Scottish Courts have adjudicated on such
‘cross border’ legislation in the past their decisions have been taken very
seriously in England and Wales and vice versa.

We have been concerned for some time that the GMC was
over-interpreting the law in a grey area in issuing its guidance. But this
latest judgement has clarified the law in a way that now makes that virtually
certain.

Christian Medical Fellowship has over 4,000 doctors and
1,000 medical students as members and the vast majority would have a moral objection
to participation in abortion. Many other doctors share these views and will
want to know where they now stand with the GMC.

As I said above I would most grateful for an indication of
your plans for review of your guidance along with timescales so that I can keep
our members informed about this important development which has practical implications
for many of them.

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Kiwi, Christian and Medical

This blog deals mainly with matters at the interface of Christianity and Medicine. But I do also diverge into other subjects - especially New Zealand, rugby, economics, developing world, politics and topics of general Christian and/or medical interest. The opinions expressed here are mine and may not necessarily reflect the views of my employer or anyone else associated with me.

About Me

I am CEO of Christian Medical Fellowship, a UK-based organisation with 4,500 UK doctors and 1,000 medical students as members. The opinions expressed here however are mine, and may not necessarily reflect the views of CMF or anyone else associated with me.